Adoption in China: Past, Present and Yet to Come

• Publication year: 2016
• Citation: Vol. 45 No. 1

ADOPTION IN CHINA: PAST, PRESENT AND YET TO COME

Margaret Ryznar^*

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TABLE OF CONTENTS

I. INTRODUCTION .................................................................................28

II. DOMESTIC ADOPTION IN CHINA .......................................................29

A. Adoption in Imperial China........................................................29
B. Adoption in the People's Republic of China..............................35

III. INTERNATIONAL ADOPTION FROM CHINA ........................................38

A. Reasons for International Adoption...........................................40
B. China's International Adoption Program..................................42
C. Legal Framework on International Adoption.............................43

IV. DEMOGRAPHIC CHANGES .................................................................45

V. CONCLUSION .....................................................................................50

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I. Introduction

The classic symbol of a family tree is a pyramid, except in China. There, the one-child policy has turned the family tree upside down for decades by limiting couples to one child.¹ The impact of the one-child policy was significant and multi-faceted not only on families, but also society. It has affected the labor force, care for the elderly, and most importantly, the gender composition of the Chinese population, with more men being born than women.²

The one-child policy has also impacted international family law. With Chinese families limited only to one child, thousands of American families have been able to adopt Chinese children since the People's Republic of China opened its orphanages to international adoption more than two decades ago.³

As international adoption became more popular, children's best interests became a central issue.⁴ At the core of the justifications for international adoption from China, or the cross-border movement of children for permanent placement in families, were the country's high number of adoption candidates and government policies, including the one-child policy.⁵ However, the cultural continuity in Chinese domestic adoption remained.⁶

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Indeed, China has a rich custom and history of domestic adoption, with many children placed in Chinese adoptive homes rather than abroad. At times, this custom of adoption even surmounted bureaucratic technicalities, resulting in the sanctioning of innumerable adoptions legally unrecognized for various reasons.

This history suggests that Chinese families would organically expand to two children after China recently shifted from the one-child policy to a two-child policy. However, intersecting with this legal change are demographic changes. Specifically, countries around the world have been dealing with decreased fertility rates.

This Article explores the future of adoption in China and the demographics of the Chinese family. Part II begins by examining the cultural continuity of Chinese domestic adoption, finding it to be relatively substantial. Part III considers modern adoption law and policy in China, focusing on the previous one-child policy. Finally, Part IV turns to the future of Chinese adoption and families, particularly in light of global demographic trends with the potential to impact China.⁷

II. DOMESTIC ADOPTION IN CHINA

Domestic adoption has an important history in China. This Part thus considers domestic adoption in two phases of Chinese history and the continuity between them: imperial China (221 B.C. to 1911) and the People's Republic of China (1949 to present).⁸

A. Adoption in Imperial China

In examining the history of Chinese adoption, two aspects of adoption must be considered: black letter law and custom. The strength of each, and the dynamic between them, creates the differences between the role of adoption in imperial China and its role in the modern People's Republic of China.

The imperial law codes were relatively sophisticated, with a definitive version emerging in 1740, consisting of 436 sections.⁹ Researchers also

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discovered codes going back to the Tang Code of 653, which consisted of 501 articles.¹⁰ Some work has also been done on the legal system of the Han dynasty.¹¹

Yet, little of this law was dedicated to adoption, making cultural attitudes and traditions on adoption far more important than legal regulations. In fact, there was a noteworthy absence of legislation outside the penal realm, with the law often less focused on regulating civil matters, such as adoption, between groups and individuals.¹² The considerable penal nature of Chinese imperial codes may have had several reasons, for example, to embody and enforce Confucian ethical values.¹³

When considering adoption in imperial China, it is useful to distinguish between the adoption of girls and the adoption of boys, each of which had different purposes and processes. Male adoption was integral to imperial Chinese society as a cornerstone of many families, and the family was arguably the most important unit in Chinese society.¹⁴ A major reason for the significance of the family stems from the ideology of Confucius, which influenced the empire until the 1911 Revolution.¹⁵ Indeed, a characteristic of Confucianism is the notion that social relations belong to the natural order. Accordingly, order within the family means order within society, which, in turn, is the order of nature.

A man's social identity related to his place in the family, which included the clan beyond the nuclear family. The clan consisted of an extended family spanning several generations and collateral lines residing together. Family members were organized in a clan by age, gender, and degree of kinship.¹⁶

Of particular importance in the clan were the male figures. In fact, there was often a duty for a man to have a son to maintain his bloodline. The

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daughter could not continue the bloodline as she married into another family.¹⁷

Marriage served as the primary means for acquiring male heirs, the lack of which created grounds for divorce. In practice, men did not need to divorce when extramarital relationships were sanctioned for procreative reasons.¹⁸ The Qing Code even permitted a secondary wife. If neither a wife nor a concubine could produce an heir, then a man adopted a son into the family.¹⁹ Adoption has thus been one of the most important means by which to continue a man's lineage in China, with this form of adoption called "ritual adoption" or "ritual succession," the latter referring to a succession to the ancestor cult and property.²⁰

Ritual adoption therefore composed an important subset of adoptions in China.²¹ A common form of ritual adoption was nephew-adoption. If a man did not have a nephew, then he could adopt a similarly aged child in the extended family and, failing this, in the population of the same surname.²² This hierarchy of potential adoptive sons was also embodied in legal codes, such as a sub-statute commenting on Article 78 of the Qing Code.²³

Nonetheless, there was also some customary adoption of "outsiders," who were seen as having undivided loyalties. This resulted in the bieng-lieng-kia form of adoption: adoption from strangers.²⁴ This form of adoption often resembled modern international adoption not only because the adoptive child was an outsider, but also because the child broke all ties with the birth family and became solely part of the adoptive family.²⁵ One important rule governing these adoptions was that the adoptive son generally had to be of the same generation as a biological child if the parent had one. Indeed, the

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extensive rules governing adoption indicated its importance in Chinese culture.²⁶

Although the law sanctioned ritual adoptions, there were also "informal adoptions," which often proceeded according to custom. These adoptions occurred for both genders and were not directly related to maintaining family lineage.²⁷ In an informal adoption, a deed would typically be drawn for the adoption. occasionally, a ceremony would take place. Indeed, custom arose to acknowledge and sanction informal adoptions that were not legally recognized.²⁸

In both ritual and informal adoptions, there could be a commercial element. one reason for an exchange of money may have been to compensate the child's biological parents for their past support of the child.²⁹ This commercial element is present in today's international adoptions as well, with the average cost of $10,000 to $20,000 for an American to adopt a Chinese infant.³⁰ Nonetheless, the commercial element of Chinese domestic adoptions did not customarily prevent the complete integration of a child into the adoptive family.

The background to the term minglingze—used to describe adopted children, particularly from outside the adoptive family—reveals one view of adoption. The term derives from the belief that wasps took the young of mulberry insects and transformed them into wasps, making them their own children.³¹ Without a doubt, most adoptions, whether informal or ritual, integrated the child completely into the family.

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Thus, adoption has been embedded in Chinese culture. While the law sanctioned only one subset of adoptions, custom facilitated many informal adoptions.³²

A number of adoptions have involved girls. Today, most international adoptions from China are of girls. For example, 95% of the Chinese children adopted by Americans in 2006 were female.³³

Historically, the adoption or entry of girls into the Chinese family was of little legal significance and did not alter the genealogy books.³⁴ Nonetheless, much custom and practice regarding the adoption of girls existed, illustrating its importance. For example, in the era of Kangxi, the term shin-pu described girls adopted to marry the son of the adopting family.³⁵

Eventually, girls were adopted into Chinese families for various reasons. Some childless couples adopted daughters in the hope of "leading in" a son.³⁶ If...